Employers' responsibility to check immigration status of employees
18 May 2009
As has been comprehensively reported on this site - section 15 of the the Immigration, Asylum and Nationality Act 2006 enables the United Kingdom Border Agency (the "UKBA") to require an employer to pay a civil penalty if he or she employs someone (the Act specifies "an adult" - by which is meant someone over the age of 16) who either does not have leave to enter or remain in the UK or whose leave to enter or remain is subject to a condition whereby her or she is not allowed to accept that employment. The Immigration (Employment of Adults Subject to Immigration Control) (Maximum Penalty) Order 2007 fixed the maximum fine payable as £10,000 per employee.
(Section 21 of the same Act created a new criminal offence of knowingly employing an adult who is subject to immigration control and who either doesn't have leave to enter or remain or who isn't allowed to do the job for which the employer has employed him or her. The offence can attract a maximum penalty of 6 months' imprisonment).
Section 15 (3) of the 2006 Act provides employers with a defence whereby they won't have to pay the penalty:
"if he shows that he complied with any prescribed requirements in relation to that employment"
The prescribed requirements are set out in the Immigration (Restrictions on Employment) Order 2007. There are stringent obligations set out in Article 6 of the Order. Effectively employers must scrutinise the passports and Biometric Immmigration Documents held by their potential employees and keep copies of those documents.
Can an employer contract for an external adviser to carry out these checks?
In a recent written answer to this enquiry the United Kingdom Border Agency's (the "UKBA's") Illegal Working Unit explained that the legislation referred to above did not permit this, because the whole point of it was to make the actual employer liable if he or she was found to be employing somewone who was not allowed to be employed. The Unit says:
"To comply with our legislation, the party who would have responsibility to check the entitlement of prospective employees to work in the UK and ultimately need to establish a statutory excuse would depend on who is considered to be the 'employer' within the contract of employment with the worker."
The Unit added that there is nothing in the Immigration, Asylum and Nationality Act 2006 which allows for this role to be delegated but:
"However, if an employer chooses to do this and a civil penalty is imposed, it is the employer's responsibility"
Basically to get the "excuse" the employer has to show that he or she has done the checking himself or herself.
It must be said however that although the 2006 Act doesn't expressly allow for the checking to be delegated - it doesn't expressly state that it must not be delegated either. The nature of the checking is likely to be relatively undaunting to an immigration lawyer but a bewildering headache for an employer - who faces a very tough penalty if he or she gets it wrong.
What the Illegal Working Unit's reply makes clear is that it will be the employer and not his or her agent who will pay the penalty if there is any illegal working. There appears to be no reason why the employer should not delegate this role to an agent, and also no reason why the employer - should he or she receive a civil penalty - should not seek to recover the fine from that agent if their legal relationship provides for this.
The idea behind the illegal working legislation and the whole Sponsorship licensing system is to impose a policing role on employers by making them liable if their staff are illegally working. A necessary consequence of this is to make any responsible employer anxious to ensure they will not become liable. To do this they remain well advised to seek professional advice.
Gherson is ideally placed to provide a complete service to employers who wish to employ skilled workers from outside the European Economic Area. Its highly experienced solicitors can assist in:
Sponsorship licence applications by employers
Ensuring that the checks required by the illegal working legislation have been fully carried out
Issuing Certificates of Sponsorship
Preparing and assisting in employees' applications for entry clearance under Tier 2 of the Points Based System.